The BIG Lie: "Separation of Church and State" (Part 9)

Author: Andy Woods
Date Written: February 28, 2014
From the archive of thewordonpolitics.com

In the last eight posts, we began a series on the "separation between church and state" supposedly found in the First Amendment. It is because of this phrase, which was first introduced into the fabric of our culture through errant Supreme Court decisions of the early 1960’s, that city councils are sued for placing manger scenes on the steps of city hall, public schools are prohibited from teaching scientific creationism alongside evolution, copies of the Ten Commandments are stricken from government walls, teacher-led prayer and Bible reading is prohibited in public schools, and Christianity has generally been purged from public life.   When did all of this insanity begin? We noted that we can trace the origin of the modern understanding and application of separation between church and state to the following two Supreme Court decisions of the early 1960’s: Engle v. Vitale and School District of Abington Township v. Schempp. Yet, an honest appraisal of these decisions shows them to be out of harmony with the vision of the Constitution’s authors. The founders would have been horrified at the prospect of removing the influence of Christianity from the functioning of public schools and government. The purpose of this series of posts is to show how out-of-step these decisions are with the express wishes of America’s founding fathers. This purpose will be accomplished through a consideration of nine historical and legal facts.   First, we observed that the words “separation between church and state” never appear in the actual wording of the First Amendment. The so-called "separation between church and state" terminology was not part of America's foundation and was never even used to limit Christian expression in government until after most of our nation's history had already transpired. Second, we noted that although Thomas Jefferson later used the phrase in a private correspondence, he actually used the phrase “wall of separation of church and state” as a one-way wall preventing the government from interfering with Christianity rather than preventing Christianity from influencing government. Third, the legal test that is used today to completely separate God from government is inconsistent with the beliefs of the founding fathers whose legislative record demonstrates that they contemplated no such separation. Fourth, the Engle and Schempp courts applied the First Amendment’s prohibition of a government-established religion to religious activity taking place at the state level in spite of the fact that the express wording of the religion clauses of the First Amendment are only a limitation on federal power rather than state power. Fifth, for the Engel and Schempp courts to make the First Amendment applicable to the states through the vehicle of the Fourteenth Amendment they not only ignored the Fourteenth Amendment’s historical context, but it also contradicted the intent of those who drafted the Fourteenth Amendment. Sixth, by banning voluntary prayer in public schools, the Engel court made the radical move of overturning a long-standing tradition in American educational history without citing a single precedent. Seventh, the Engle and Schempp courts reached the decisions that they reached regarding prayer and Bible reading in the schools because of their a priori belief that such activity is psychologically harmful. We now move on to our eighth point.

Eighth, the Engel and Schempp courts seemed to have followed more of a legislative philosophy rather than a judicial philosophy. It is interesting to observe that most of the jurists on these courts had political rather than judicial experience. Historian David Barton makes the following important observation:

For example, Chief Justice Earl Warren had been the governor of California for ten years prior to his appointment to the court; Justice Hugo Black had been a U.S. Senator for ten years prior to his appointment; Justice Felix Frankfurter had been an assistant to the Secretary of Labor and a founding member of the ACLU; Justice Arthur Goldberg had been the Secretary of Labor and ambassador to the United Nations; Justice William Douglas was chairman of the Securities and Exchange Commission; all the justices except Potter Stewart had similar political backgrounds. Justice Potter Stewart, having been a federal judge for four years prior to his appointment, was the only member of the court with extended federal constitutional experience before his appointment. Interestingly Justice Potter Stewart was the only justice who objected to the removal of prayer on the basis of precedent. He alone acted as a judge: the rest acted as politicians.¹ 

Justice Potter Stewart, 1976

Unless the legislative and executive backgrounds of the members of the Engle and Schempp courts are considered, it is virtually inexplicable how our highest court could have re-written the First Amendment so as to banish Christianity from the public square. As we have seen in this series, the original intent of the First Amendment must be twisted beyond recognition in order to arrive at the modern understanding of the "Separation of Church and State." However, when jurists no longer see their role as that of a discoverer of a law's intent but rather its amender or author, then the original intent of the First Amendment means very little, if anything, when adjudicating such matters. Simply put, the Engle and Schempp courts back in 1962 and 1963 did not function the way our judiciary is designed to function. They had no ambition to do what jurists are supposed to do by deriving the original intent of the First Amendment and then applying that intent to the case before them. Rather, they decided to amend the Constitution from the bench and alter or rewrite the First Amendment in order to make their novel interpretation fit a preconceived progressive social agenda. Although this type of activity is a permissible role for the legislative branch of government, which is directly accountable to the people through the ballot box, our judicial branch instead left its proper role and impermissibly took upon itself a task reserved only for the legislature.   Such a scenario threatens America’s democratic ideals because it places the awesome power of amending the Constitution in the hands of nine life tenured, unelected justices. Only five of these nine justices need to agree with one another in order to hand down a majority opinion. Thus, the expression “With five votes we can do anything” has become a famous quip amongst judicial activists.²  Because these justices are appointed for a life term, they are completely insulated from the electorate and thus totally unaccountable to the people for the decisions that they render. At any time, these five justices can circumvent the democratically controlled amendment process and alter America’s most deeply cherished constitutional protections. This method of altering the Constitution reverses the founders’ design, which envisions the amenders of the Constitution being held directly accountable to the people during the next election cycle for any Constitutional alterations that they make. Thus, if five life tenured, unelected judges alter the Constitution in a way that is unagreeable to the people, there is no political recourse against these decision makers through the ballot box.   Such a system does not comprise a democracy, or even a republican form of government, but rather an oligarchy. The English word oligarchy is derived from the Greek word oligos, which means “few.” Under an oligarchical form of government just a few people rule the masses. America’s current judiciary resembles an oligarchy because it places the authority of guiding or rewriting the Constitution, and thus the power to amend the Constitution, in the hands of five unelected and unaccountable philosopher kings. Ironically, such repeated judicial activism has transformed the judiciary from, according to Alexander Hamilton’s words in Federalist Number 78, the least dangerous branch of government into government’s most dangerous branch. Thomas Jefferson warned that the judiciary had the potential of transforming into such an oligarchy when he said:

You seem…to consider judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so…and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are to the elective control. The Constitution has erected no such single tribunal…³ 

Once the judiciary departs from the Constitution’s plain language, the Constitution, in the words of Jefferson, becomes “…a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”⁴ 

(To Be Continued...)